Key Takeaway
Court ruling clarifies that insurance companies can use different expert witnesses to testify about peer review reports in no-fault cases, expanding defense flexibility.
In New York’s no-fault insurance litigation, questions frequently arise about which expert witnesses can testify on behalf of insurance companies when defending denials of medical claims. A common scenario involves an insurance company having one doctor prepare a peer review report to deny coverage, but then wanting to use a different expert witness at trial to defend that denial decision.
This practice has generated considerable debate in the courts, with some judges questioning whether the testifying expert must be the same doctor who prepared the original peer review report. The issue touches on fundamental principles of expert witness testimony and the proper foundation required for such evidence.
The Appellate Term’s decision in Nova Chiropractic Services provides important clarification on this procedural question, addressing the scope of permissible expert testimony and the burden placed on plaintiffs to object when testimony exceeds appropriate boundaries. This ruling has implications for how both sides prepare their cases and handle expert witness disclosures in no-fault litigation.
Jason Tenenbaum’s Analysis:
Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., 2018 NY Slip Op 51688(U)(App. Term 2d Dept. 2018)
“Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of claim form had been based, should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154, 2012 NY Slip Op 50349 ). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the [*2]event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report”
At the least the judges that were reversed have bee consistent.
Key Takeaway
Insurance companies can use different expert witnesses to testify about peer review reports, even when the testifying expert didn’t prepare the original denial report. However, the testimony must remain within the scope of the original peer review findings. Plaintiffs bear the responsibility to object if the expert testimony strays beyond the documented basis for denial, similar to requirements for establishing proper foundation in other expert testimony contexts.
